Political Scene: Moving Gay Marriage Forward

This week, the Supreme Court heard oral arguments in two cases dealing with gay marriage: the challenges to California’s Proposition 8 and the federal Defense of Marriage Act. On the Political Scene podcast, Jeffery Toobin and Margaret Talbot talk with Dorothy Wickenden about how the Court might rule in each case and what the decisions could mean for marriage equality.

While plaintiffs in both cases seek to extend the right to marry to same-sex couples, one potential interaction between the two cases could work against that goal. “Justice Kennedy was so clearly captivated by the federalism argument—the sates’-rights argument, the idea that marriage is something that we leave for the states to regulate,” Toobin tells us. “That’s good news if you want DOMA overturned. That’s not such good news if you want Prop 8 overturned.”

But there is also a chance that the Court will avoid causing such an interaction by deciding not to rule on Prop 8 at all. Because the state of California decided not to defend its own law in court and left the task to its original proponents, the Supreme Court could determine that the people who appealed the previous ruling on the lawsuit, which struck down Prop 8, did not have the legal standing to do so, and thus avoid ruling on the substantive issues at hand. The issue of standing, which Richard Socarides has more on, is, as Toobin says, “something the Court seemed very troubled by.” Even assuming the Court does opt to consider the merits of the case, it still may not issue the sweeping ruling some people are hoping for. Supporters of same-sex marriage, Toobin says, “are trying to get the Supreme Court to recognize a new set of rights, which they are generally reluctant to do.”

California notwithstanding, marriage equality has made progress in the states—legislatively and electorally—with a speed rarely witnessed on such controversial social issues. “Almost regardless of what the Court does,” Talbot says, “this is kind of a done deal.” Already some Republicans, concerned about their popularity among young voters, have begun “defecting to the side of same-sex marriage,” she notes; more can be expected to do so in the near future. As Toobin puts it, “the country… moved so fast that the stakes in [the two cases] went down.”